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Objection! #9: The Case of the Purloined PlayStation

Now, remember that the only thing going on here is that a California judge has issued a TRO to prevent Hotz and his colleagues from disseminating more information -- it's also forced them to turn over their PCs, PS3s, and any other stuff associated with their potential violations of the law, as well as to stop telling other people what they did. Okay, so what's a TRO? Well, it's a form of injunctive relief (an "injunction" is a fancy way of saying that the court is preventing somebody from doing something), brought in at the beginning of a variety of cases in which one party is trying to stop another party from doing something that would cause "irreparable harm" to them before they can do that harm. The key thing is that it is temporary, so the threshold for securing one is generally much lower than a permanent restraining order. TROs are issued in all kinds of cases -- as part of one of my old jobs, I helped battered women (and men) get TROs against their significant others before actual criminal proceedings began, for example. So they're not restricted to the corporate world by any means.

The key to a TRO is that the person asking for one has to show that he or she has some likelihood to succeed in the lawsuit that's going to happen down the line, and that he or she will suffer some kind of irreparable harm. The California court here felt that both of those elements were true with regard to Hotz, and issued the TRO. Don't assume, however, that this means the court is going to rule for Sony in this case; "likelihood to succeed on the merits" doesn't mean that it's likely that they'll win, just likely that they'll be able to build a coherent case.

Now, while the California court seemed pretty sanguine about Sony's chances to at least build a case here, a variety of different challenges are facing the whole proceeding, both procedural and substantive. One thing you hear a lot on the boards is that this case is a violation of Hotz's (and the other 100 guys') freedom of speech. It's not fair, goes the argument: Hotz was merely telling people information that he himself discovered. How can that be illegal? Well, the problem is that the information he's disseminating is information that may not be protected by the first amendment. Critically, Hotz is giving away secret information (see the section on trade secrets in Objection! #7) that represents Sony's proprietary security measures. This information would both be protected by trade secret statutes (and possibly by copyright laws), and also by the terms of service contract that Hotz agreed to when he started using the PS3.

But how can that be? Doesn't he own the PS3!? Can't he do whatever he wants with his own property!? This is America, not some commie-socialist crappy country where a man can't own private property, dammit!

Here's the problem: while Hotz owns the PS3, he does not own the security codes used to protect Sony's data, nor can he legally be entitled to ownership of the technology to crack those codes, let alone to disseminate that technology. Think of it this way: Let's say I bought a Cadillac and then discovered how to reverse-engineer the Cadillac keyless entry system and make a universal Cadillac door-unlocker that could unlock any Cadillac anywhere, anytime. Let's say that I then went on the Internet to websites filled with various car modders, customizers, and yes, some known car thieves, and just put out there how to make this door-unlocker. Maybe I'm not specifically endorsing car theft; maybe I'm not even saying what the unlocker could be used for. Fine. But does anyone reading this seriously believe it would be OK for me to even make that door unlocker in the first place -- let alone share how to make it with others -- just because I bought a Cadillac one time? Does anybody not see the potential danger and moral hazard caused by allowing people to have a universal Cadillac door-unlocker thingy? Sure, we all want to drive Cadillacs... but unfortunately, in a just society, we're going to have to pay for them.

That, then, covers the major substantive defense in this case. However, Hotz may be able to use a rather interesting procedural defense to get himself some protection. If you recall, early on in this piece I mentioned that Hotz is from New Jersey. The court that issued the order is in California. Hotz's attorney has said that he plans to argue that the California court (Sony's U.S. offices are located in California, FYI) doesn't have jurisdiction to handle the case at all. This could be an interesting argument -- we don't know enough about the specific details in the case itself just yet for me to be able to say one way or another whether the jurisdictional issue is a valid defense, but I have to wonder how the California court came to the conclusion that it had jurisdiction.

The court documents suggest that the judge felt she could issue the TRO properly because Hotz and his 100 buddies had disseminated information in a way that it was directed at California persons. But what exactly that means, and in what way it could possibly be interpreted, is very nebulous from my perspective. If you post something on a message board, and some of those board members happen to be in California, does that mean you've intentionally targeted Californians and are subject to California laws? If so, whenever any legal case involves any Internet posting or e-mails or anything that could be seen by someone in a certain state, does that state suddenly get jurisdiction? That seems patently unfair, and against the spirit of jurisdictional regulations. Still, it's an interesting question, and one I'm definitely going to monitor for you as this develops into an actual case.

Conclusion

So, how is this one going to turn out? I think, apart from the procedural issues, Sony has a pretty strong case. Hotz, like all PS3 users, agreed to the clickwrap, and is bound by it not to hack Sony's stuff. He can't possibly argue a first-amendment ground here, because he's disseminating secret, private information... and doing so in a way that's clearly damaging to Sony's business interests. So basically, if this one goes through, I think at the very least, Hotz and his buddies are going to be permanently enjoined from ever doing stuff like this again, and possibly even suffer some monetary damages.

What about the modding/hacking community as a whole? Well, in a practical sense, things aren't really going to change. Let's be honest: What they're doing has always been unlawful, but it's also always been impossible to stop. A court decision might make explicitly illegal some stuff that was already implicitly so, but it's unlikely to effectuate any real change on the community as a whole. Modding will still happen, people will still talk about it (and occasionally get into trouble for it), and pirates are still going to pirate games. The legislatures can make the laws, the courts can prosecute the laws, but enforcing them as a practical matter -- that's the million-dollar question, mes amis. Same as it ever was.

Years ago, Eric Neigher went into law school, and started writing about games on the side. These days, he splits his time between pwning noobs on the Internet and pwning noobs in the justice system. His column, Objection!, was the 2010 recipient of the Neigher award for his own works.